Around 95% of applications to the European Court of Human Rights are declared inadmissible or struck out without substantive consideration on their merits. This may be because an application is obviously unmeritorious (‘manifestly ill-founded’), or alternatively as a consequence of some unsurmounted procedural or jurisdictional hurdle. Given the Court’s heavy caseload, the numbers of applications resolved in this way are vast. In 2017 alone, 70,356 individual applications met this fate.
It is obviously unfortunate for an applicant, who otherwise might have prospects of succeeding, to be refused substantive consideration by reason of a (possibly avoidable) procedural or jurisdictional flaw. The purpose of this blog post is to provide a check list setting out the main features of the Court’s admissibility requirements, which, if not satisfied, could lead an unwary applicant to a finding of inadmissibility. It is hoped that this will assist future applicants in preparing properly sustainable cases before the Court.
- Does the applicant qualify to bring an application, that is, does he or she fall into one of the categories mentioned in Article 34 of the Convention?
An application may be brought where the alleged violation took place within the jurisdiction of the Respondent State in accordance with Article 1 of the Convention. Applications may only be brought by living persons or on their behalf. A deceased person may not make an application, even through a representative. Organisations may apply to the Court, as long as they are non-governmental organisations.
- Can the applicant show that he or she is the victim of an alleged violation of the Convention?
In order to demonstrate ‘victim status’ for the purpose of compliance with Article 34 of the Convention, the applicant must be ‘directly or indirectly affected’ by the alleged violation. Examples of ‘indirectly affected’ applicants who may still pursue a complaint are: (i) a close relative of a person whose death is alleged to engage the State’s responsibility under Article 2 of the Convention, or; (ii) the alleged legal heir to a now deceased victim of an alleged violation. In relation to companies, no complaint may be brought in respect of a violation alleged to have occurred in proceedings to which the proposed applicant was not a party, even if the applicant was a shareholder and/or director of a company which was a party to proceedings. Where a person has accepted a final settlement from the Respondent State in the domestic proceedings underlying the application, they may lose their victim status – or standing – for the purpose of making an application to the Court.
- Has the application been introduced to the Court within the 6 month time limit for applying to the Court from the final domestic judicial decision in the process of exhaustion of domestic remedies (Article 35(1) of the Convention)?
The date on which time starts to run will vary according to the facts of a particular case. Generally, the six month period will begin on the day after the date on which the applicant was informed of the final decision in the domestic proceedings, or the decision was pronounced in public. Where the alleged violation was continuous (such as alleged unlawful detention), the time limit may start to run from the date on which the violation ceased. The deadline expires six calendar months later, regardless of the actual duration of those calendar months. The date of introduction of an application for the purposes of Article 35(1) of the Convention is the date on which a properly completed application form is sent to the Court (rule 47 of the Rules of Court).
- Have domestic remedies been exhausted prior to the application being made to the Court (Article 35(1) of the Convention)?
The Court requires applicants to have raised the alleged violation with the national authorities – principally the domestic Courts – with a view to enabling those authorities to prevent or provide redress for alleged violations. The violation should be raised at all levels permitted by the domestic law machinery. For example, in proceedings in England and Wales, a Convention complaint raised unsuccessfully by way of a civil judicial review claim should be challenged by an application for leave to appeal to the Court of Appeal (Civil Division), and, if that appeal was entertained and dismissed, on appeal to the Supreme Court. It would not be acceptable for the purpose of Article 35(1) of the Convention to launch an application on the basis of a High Court ruling on a judicial review claim, against which there had been no attempt to appeal. That said, applicants are only required to pursue remedies that are accessible, capable of providing redress and which offer a reasonable prospect of success: exceptional or discretionary remedies are not required to be pursued. The exhaustion rule has been described as one that is ‘golden rather than cast in stone’. It is applied with a certain flexibility and the Court will not always require the Convention right to be explicitly raised in domestic proceedings provided that the complaint is raised ‘at least in substance’.